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Warner Brothers: Automated Takedown Notices Hit Files That Weren't Ours
itwbennett writes "In a court case between Hotfile.com and Hollywood studios, Warner Brothers admitted they sent takedown orders for thousands of files they didn't own or control. Using an automated takedown tool provided by Hotfile, Warner Brothers used automated software crawlers based on keywords to generate legal takedown orders. This is akin to not holding the Post Office liable for what people mail, or the phone companies liable for what people say. But the flip side is that hosters must remove files when receiving a legal takedown notice from the copyright holder — even when the copyright holders themselves don't know what material they actually own."
If someone sends you a takedown notice for something that they don't own, that doesn't sound even remotely like a legal takedown notice.
Techdirt has a great article about this: http://www.techdirt.com/articles/20111110/10135116708/glimpse-future-under-sopa-warner-bros-admits-it-filed-many-false-takedown-notices.shtml
It makes some interesting parallels to SOPA and E-Parasites bills and why the laws shouldn't be passed.
I seem to recall some talk of that kind of stuff before. Apparently they have to in good faith attest that they have the copyrights to those items they send takedown notices for, or else they open themselves up for a lot of potential legal issues. I really have no bloody idea what that would be, but I'm sure suing them by both the ones that received the takedown notice, and the actual owner of the copyrighted material that WB claimed to own, would both be able to sue them.
I'm not a laywer, but we've seen this stuff come up in the forums before on small takedowns.
"This is akin to not holding the Post Office liable for what people mail, or the phone companies liable for what people say."
No this is akin to FRAUD. It'd be like me saying I'm Warner Brothers and going and cleaning out their bank accounts.
PS: Maybe if the DMCA included fines and penalties for takedown notices that are illegitimate they might not be as prone to using automated tools that work on a 'spray and pray' philosophy... Also if any of these people were unfairly targeted by DMCA notices should sue Warner Bros for damages and such.
09F911029D74E35BD84156C5635688C0
+2 Troll is Slashdot's way of saying groupthink is confused
That "not" shouldn't be there. And it feels like there is something missing from this analogy. Perhaps it would be like "holding the post office responsible to stop mailing privileges for people wrongly accused of mailing fireworks."
What changed under Obama? Nothing Good
If you carefully review the elements of the DMCA takedown and put-back notices, you'll note that for the put-back notice, you must provider
a statement under penalty of perjury that [you have] a good faith belief the material was mistakenly taken down
Fair enough. But check the takedown notice:
a statement that [evil RIAA goon lawyer] has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
a statement that, under penalty of perjury, [evil RIAA goon lawyer] is authorized to act for the copyright holder
That's right -- it's a crime (perjury) to submit a take down notice if (and only if) you're not authorized by the copyright holder. It's not a crime to submit bad-fath take down notices. But disputing a bad-faith take down notice potentially is a crime and exposes you to criminal liability.
Do you even lift?
These aren't the 'roids you're looking for.
I would argue that you cant have 'good faith' when there is no human oversight involved. Thus punching in a bunch of keywords into some automated process and having it generate automated DMCA notices in a 'spray and pray' fashion is tantamount to walking around with a loaded firearm and when it accidentally discharges and kills someone you claim it was an accident (good faith) rather than murder (FRAUDULANT CLAIM)
09F911029D74E35BD84156C5635688C0
+2 Troll is Slashdot's way of saying groupthink is confused
So how does the Clean Hands Doctrine come into play and can these sites start ignoring take-down notices from Warner Brothers because of it?
Under the law, this action is refered to as "depraved indifference" - an action, deliberate or unintentional, displaying reckless disregard and wanton carelessness. A suitable penalty would include the removal of the ability to issue takedown notices for a year (or more...).
Chaos maximizes locally around me.
Lilly Tomlin on SNL back in the '70s: "We don't care, we don't have to, we're the phone company... *snort*"
Yep, buy how using an automated tool gives them the "good faith" cause? If you are willing to go deeper, even the takedown notice would be considered to be taken down, and the judge posted it, liable to a law suit. Ironic, ain't so?
Yes, it is. However, if one submits such a false take down notice, the according to the DMCA they can be charged with perjury. It's too bad that (to my knowledge) no-one has taken advantage of this...
Copyright holders aren't responsible when their bots screw up? Okay, fine, I can buy that. Programs do occasionally make mistakes. I don't get angry at Netflix for occasionally recommending Shindler's List based on my interest in Wall-E. But if content hosters have to pull down content when they receive a notice from a company holding the copyright, then there needs to be a way for the hoster to know if the company holds the copyright.
Media companies engaging in such scattershot tactics should therefore be required to host a database listing every copyright they own. That way if they send a takedown notice for video X to YouTube, someone at YouTube can check the video, check the database, and say "yep, that shouldn't be here" or "nope, this request must have been sent in error."
If they own the copyright but don't list it in their database, then it's their own damn fault if hosters don't pull it. If they don't own the copyright and but do list it in the database, then that can no longer be dismissed as just an error in their bot's algorithm, and they should be open to lawsuits from both sites receiving takedown notices and from the actual copyright holder.
Tortious interference, perhaps?
Thus punching in a bunch of keywords into some automated process and having it generate automated DMCA notices in a 'spray and pray' fashion is tantamount to walking around with a loaded firearm and when it accidentally discharges and kills someone you claim it was an accident (good faith) rather than murder (FRAUDULANT CLAIM)
Wow, if you are seriously presenting that as a legal theory, I'm surprised you could turn a computer on. That's so stupid, it's funny. The courts do realize that killing someone is permanent and much worst than a temporary takedown notice mistakenly issued with no permanent effects at all. If you sued because of this "fraudulent claim" you'd likely be thrown out of court on your first day. You have a recourse listed specifically in the law. Issue a counter-claim and your content goes back up. If you object to having your stuff down for a bit before the counter-claim is active, you would have to prove financial damage prior to the start of the trial, otherwise, the judge could do something like a summary judgement in your favor for $1 (since you didn't indicate any actual loss, why bother with a trial? If you win and win back all damages against you, you'd get $0, so the judge orders them to pay you $1 and you walk away both a fool and a winner). If a DMCA claim is mistakenly filed against you, what's your loss?
Learn to love Alaska
Telling an untruth under oath isn't perjury...
And there in lies one of the fundamental flaws in take down notices under the DCMA. They could just as easily have generated the notices from a ouija board or a burning bush. So long as you can't prove they knowing lied the notice is fully valid, and the sender of the notice faces no liability.
Good faith requires that you have reasonable grounds to believe that something is true, or that you have the claim or right, or legal right to do so. That isn't the case here. They're simply doing it because they 'feel' or 'think it might be' something based on assumptions, and guesswork. It would be the same as a cop going along and busting down someone door randomly and saying "I reasonably believed that they were smuggling 250lbs of coke" based on their gut. Doesn't fly there, it shouldn't fly here.
There is a clause in the DMCA for filing claims that are false, perhaps people should start using it?
Om, nomnomnom...
Yes, what about that?
Or at least they could put it below the notifications box.
-- no sig today
This is more akin to the phone company not being liable for using automated software to drop all calls that have words that sound like 'bomb'. (Fun Fact: the tech WAS implemented for international calls post-9/11)
... they have to in good faith attest that they have the copyrights to those items they send takedown notices for ....
The global judicial infrastructure is not based on good faith. You can't go into a court say you own a country and be granted legislative priviledges to that without research to affirm your claims. So why should individuals be forced to follow other individuals' claims in good faith? With the same concept spamers would have to just order you to install spyware.
That doesn't seem very consistent or legit or even healthy reasoning.
-- no sig today
It doesn't seem to be mentioned anywhere in the article, but does anyone know which "Open Source software" was removed? They claim that the software sped up infringing downloads, so I wondered if it was a file sharing program or download accelerator or something along those lines. This company would happily claim that the entire internet in general is bad because it helps people download infringing content.
It's not "accidental".
Sheriff to deputy: "The suspect's wearing a stetson hat, go take him down"
Deputy: "Got it" (goes out, shoots everyone wearing a stetson hat)
Sheriff: "Well, now hat's an accident!"
If, as the rights owners claim, unauthorised copying is 'copyright theft, then surely claiming to own the copyright of something which they do not. is a much more serious case of copyright theft.
Especially since they were repeatedly warned that they were misreporting files and refused to stop and it just so happens they had a financial motive in acting improperly given that the page generated by using the removal tool had links to purchase the alleged infringing work legally--free page views on free advertisements, effectively.
Because it'd be logistically impossible to enforce copyright online to any higher standard than 'that looks a bit dodgy, pull it down.' It's almost impossible to enforce it even with the evidence-free standard of the DMCA.
1) Take it down, right now, no questions.
2) Become liable for a claim for damages according to the DMCA.
Unless the recipient is willing to risk great financial loss just to prove a point, it's really no contest.
It would be the same as a cop going along and busting down someone door randomly and saying "I reasonably believed that they were smuggling 250lbs of coke" based on their gut. Doesn't fly there, it shouldn't fly here.
But it does fly for that, so by your logic, it should fly here as well. I think you are misrepresenting the "gut" to fit your opinion, though, so you could redefine "gut" in such a manner as to declare me wrong, but what you said happens every day. "Reasonable suspicion" is nothing more than "gut" where "gut" is defined a little more explicitly. Probable cause is a little more rigorous, but reasonable suspicion is the lowest level of "proof" defined by law and is no more than "gut" explained in English.
There is a clause in the DMCA for filing claims that are false, perhaps people should start using it?
That's what I said. There's nothing in there for someone who negligently files a "false" claim receiving any punishment. But if you have content taken down improperly, there is an explicit means to get it restored that the organisation removing the content must follow, or they are in violation of the DMCA (not following it is essentially the same as refusing a takedown in the first place).
Learn to love Alaska
We need "-1 goatse" mod...
Actually there are sometimes very good reasons for downloading copyrighted material. For example I have downloaded cracked versions of several games that i have bought and paid for, why? because when I switched to a 64 bit OS the fucked up DRM would no longer function and in fact IME can seriously damage the OS because some of the installers will try to jam 32bit hooks into a 64bit kernel and really make a mess. oh and their uninstaller DOES NOT WORK so once its jammed in there you are SOL. I have also found company supplied system requirements and demos are often completely full of shit, as i've bought games where I was WAY below system reqs and the demo played fine but the game simply wouldn't run at all on my system. of course there is no taking it back once opened, so there goes my money right down the shitter.
So until the game companies start removing their DRM after a year or whenever they stop supporting the game, whichever comes first, and I'm allowed to take back products that are defective frankly they can kiss my ass. If they were smart they'd embrace sites like Steam and GOG where my games "just work" but even that they are trying to fuck up by adding DRM on top of Steam, such as the shitastic GFWL bullshit I got stuck with when i bought Bioshock II. The pirate version? No jumping through GFWL constant bullshit just to play the game.
So I have to agree with Gabe from Valve when he said something along the lines of "piracy means you are offering an inferior product". Either your price is too high, the DRM too shitty, or too many hoops just to play (I'm looking at YOU Bioshock II) and you are simply not making your product as useful for the customer as the pirated version.
ACs don't waste your time replying, your posts are never seen by me.
Haven't you been listening to the media industry? Each copy they prevent you from distributing equals thousands of dollars.All you have to do is set up a website where people can wire you donations after seeing your product.
Since it is now public knowledge these automated tools are unreliable, simply stop allowing its users to pretend to good faith while using them. Rights holders should not be able to pass the cost of policing their rights on to society by spamming the legal system with invalid notices.
(Not taking into account that "passing the cost of policing their rights on to society" is what they have done for decades.)
Or a preview of life in these United States in two or three years? This is precisely what will happen when those charged with conducting the business of the nation decide instead to legislate moral behavior.
Some days it's just not worth
chewing through my restraints.
Didn't you get the memo? "Legal (insert buzzword)" has nothing to do with "legal" in the way a dictionary defines "legal".
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Does that mean that's like me going to a post office and telling them to throw away various packages because I think they might be damaging one of my rights and they'd have to do it?
Anyone here thinking this sounds like it could in any way remotely be connected to the definition of "legal"?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
of course there is no taking it back once opened, so there goes my money right down the shitter
Is this really true? In the UK, you can return it with the original packaging as not suitable for the purpose for which sold, and they are obliged to give you a refund. If they don't, then you can take them to the small claims court as long as you do so within a few (5, I think) years of the purchase.
I am TheRaven on Soylent News
No, they have two choices: take it down immediately or lose their DMCA safe harbour protection. Without the safe harbour protection, they are liable for any copyright infringement that occurs on their site, so become liable for statutory fines of $7.5K or more per work that is uploaded to YouTube and infringes anyone's copyright. i.e. enough to bankrupt Google. I am not certain what happens if they don't put things back after receiving a counternotice. I would hope that this incurs the same liability.
Sending a takedown notice is using the legal process to have it taken down, so your points 1 and 2 are the same. If the uploader files a counternotice and they put it back, then it has to proceed through the courts and the host is not liable for any infringement (as long as they take it down if the court tells them to).
I am TheRaven on Soylent News
You are confusing insane statutory losses intended for professional bootleggers (whether applied to casual non-profit sharing is irrelevant) with *actual* losses, which have to be well documented to claim. Depriving someone of their place of business for a day is easy to determine a loss of, as you just open your books for the last few years and calculate a reasonable interpolation of what that day would have been if you hadn't been deprived of it. But for a "free" video you were sharing on YouTube and getting no income from, what's the actual loss you can prove in court? If it's zero, then the court should dismiss your suit at the first hearing, as if you "win" and get exactly the same result as a "loss" then there's no reason to hold the hearing. You are confusing what you'd like to have happen with what will happen.
Learn to love Alaska
Is this really true? In the UK, you can return it with the original packaging as not suitable for the purpose for which sold, and they are obliged to give you a refund. If they don't, then you can take them to the small claims court as long as you do so within a few (5, I think) years of the purchase.
I think they would point to the fine print on the box, visible before you opened it, that specified it was for a 32-bit operating system and made no claims about its suitability for a 64-bit OS, and your claim would collapse.
Quidnam Latine loqui modo coepi?
if one submits such a false take down notice, the according to the DMCA they can be charged with perjury. It's too bad that (to my knowledge) no-one has taken advantage of this
Lenz v. Universal is a start.
I received a couple of DMCA takedown notices... and I live in Canada.
"Juris-my-diction"? Canada is a Berne Convention party too. If your country doesn't have a takedown law, then I'm guessing the notice should be handled like any other cease-and-desist letter: "take down this customer's unauthorized copy of our work or I am likely to sue you as a provider." Does the law of Canada provide for any procedure that gives a legal defense to service providers against contributory or vicarious liability for copyright infringement?
The problem is the way the DMCA is written:
See, you're not swearing that the file in question belongs to the copyright holder that you represent. You're only swearing that you allege that the file in question belongs to a copyright holder that you represent. BIG difference.
The only explanation for this kind of language is that it was deliberately written to be unenforceable.
Give me Classic Slashdot or give me death!
It is a crime to file a phony DCMA request.
The dangers of knowledge trigger emotional distress in human beings.
Sounds like racketeering to me.
Give me Classic Slashdot or give me death!
That analogy in the story really sucks bad. Its nothing like the example that the post office isn't held responsible for content. Of course they aren't. they cant see the content.
If you have to use the PO, it would be more like them refusing to deliver due to the content of the magazine titles. " we think its bad "
---- Booth was a patriot ----
4 ) Be sued and lose money defending their clients, even if they win.
---- Booth was a patriot ----
True, and if it was challenged it would fail, but they are taking advantage of the DMCA's extra-legal methods. Since hosts that do not 'quickly' deal with such notices loose their safe harbor provision, they can utilize 3rd party's fear to do things that they could never do through a judge.
The way the DMCA is written, takedown notices are basically preliminary injunctions against the posting of that item. What I can't understand is how you can in "good faith" say you own copyright on everything with "the box" in it. At this point, I would say that they violated the rules & should be sued for slander of title by the copyright owner and tortuous interfierence by hotfile and the copyright owners.
In my own little perfect world, they would have an injunction issued against them preventing them from issuing another takedown notice for a year or more as punishment for abusing the system.
What I gather from the article is that P2P use is still lawful in Canada because Canada hasn't yet implemented the WIPO treaty. But does the WIPO treaty specify penalties for not transposing it into national statutes in a timely manner? Would countries with tougher copyright laws be justified in imposing trade sanctions on Canada?
No- what your swearing is that "the complaining party is authorized to act on behalf of the owner of an exclusive right", and that said right is "allegedly infringed".
In other words: "I'm acting for the owner of the right to this work, and that right has been allegedly infringed." As you can see, everything before the comma is demonstrably false.
In the quoted subsection (vi), the word "allegedly" is only used to modify "infringed". I see no reason to interpret it in the manner described by Hatta.
1. Get rid of these notice-and-takedown laws.
2. Enact statutory liability any time this happens. That will make these folks a lot more careful about how they use the notice-and-takedown laws.
Anyone who has their freedom of speech inappropriately restricted deserves compensation from these clowns.
Uhhh...dude? When my PC is way above system reqs (which BTW if one would support your argument then they would have to accept that THERE ARE NO GAMES FOR 64BIT OS since I have yet to see 64 bit on a single box) there is NO damned reason why it shouldn't 'just work" except for their code being unsuitable for purpose. I have also found their demos to be absolutely worthless as they will bust their ass to make sure the demo code works well while the rest of the game runs like absolute ass. for examples Max Payne, Vamp:Bloodlines (which was such shit that I couldn't play the game until a fan made patch came out a year and a half later, by which time the game was in the $10 bin instead of the $50 i paid) Titan Quest (where I actually had a developer tell me i must have pirated the demo, WTF?) hell I could go on all day.
It does not change the fact that software is the ONLY item that I'm aware of where you can sell a completely broken product and get to keep the money. All they have to do is getting working on ONE config and then shove it out the door. can you imagine if they sold cars that would only run on a particular brand of gas that wasn't sold in your area and once you found this out got told "tough shit we gots your money now bitch!".
ACs don't waste your time replying, your posts are never seen by me.
Fair is fair. Other people should be able to take down Warner Bros. stuff without owning it as well.
Wonder how fast the DMCA would be amended once people/other companies start doing that?
I am not certain what happens if they don't put things back after receiving a counternotice. I would hope that this incurs the same liability.
In both situations what they gain by following the take-down notice and counter-notice is limitation from liability. In the first case it is limitation from liability for damages claimed by the copyright-holder, as you said. In the second case it is limitation from liability for damages claimed by the person who posted the content. Regardless of whether they act on the counter-notice or not they still have protection from copyright infringement liabilities.
For example, if I pay for hosting which has uptime guarantees, and my content is taken down, then I could argue that the host violated their contract and owes me money. The DMCA says that the host is protected from such claims provided that the takedown was performed in good faith based on a valid take-down notice, and that the restore the content when presented with a valid counter-notice.
However, if you are using a service like YouTube which you don't pay for and whose terms of service allow them to remove content at any time for any reason, then you have no grounds on which to claim damages to begin with. Therefore, YouTube really doesn't need protection from liabilities that never existed to begin with. Their choice to act on counter-notices or not is purely a business decision(it is a little more work, but creates good-will with their users if they do), not a legal one.
Oh, and one other point, back in the situation where you are paying for hosting and have a legitimate claim for damages. If the copyright holder notifies the host that they are planning to request an injunction on the posting of the material (just planning, they don't have to have one issued yet, or even have filed for one), then the host can ignore your counter-notice and will still not be liable for the damages caused to you.
Or, service providers that host posted content could simply say, "Show us real, direct proof that you're the copyright holder, and then we'll take down the offending material."
See, you're not swearing that the file in question belongs to the copyright holder that you represent. You're only swearing that you allege that the file in question belongs to a copyright holder that you represent. BIG difference.
Subtly incorrect or not expressed clearly enough. In a DMCA notice you say "we found file X, and file X belongs to the copyright holder, and I am authorized to act in their behalf". If you are not authorized to act, then it is perjury. If file X doesn't belong to the copyright holder, it is perjury. But if the file in question is not file X, but a different file Y, then it is not perjury.
The first part, "a statement that the information in the notification is accurate", would of course be false, but that doesn't fall under perjury.
That said, I would be _very_ careful with my choice of words if I wrote a DMCA takedown notice.
You are deliberately excluding the first two definitions as "not lies" in order to accept the third and least accurate definition. I reject your reality, as it does not match the manner in which the dictionary works, but is a mental masturbation on your part to make you feel better about rejecting the most accurate definitions. Definitions 1 and 2 do not require any knowledge of falsehood. I could just as easily repost you response with #1 highlighted, and I'd be more right than you are, as the order of the definitions is deliberate and with meaning.
Learn to love Alaska
Telling an untruth under oath isn't perjury
No, but filing a DMCA takedown notice not in good faith is perjury according to the DMCA.
Not in good faith includes such things as filing a DMCA takedown notice over the torrent where the only mention of The Box was the fact that one of the comments on the page for the torrent included the word "box." Which Warner Bros. apparently did according to the details of their current lawsuit. So is filing DMCA takedown notices over Open Source software.
In other words, Warner Bros. has admitted to committing multiple felonies, each of which has a max sentence of 5 years prison time.
I think we should apply this to each and every one of the board of directors and CEO.
GLaDOS for President 2016! "Well here we are again. It's always such a pleasure." -- GLaDOS, 2011
They outsourced it. Someone else said "this is yours" and they had no reason to believe otherwise. That's good faith.
Learn to love Alaska
What? It's called the PortableApps.com box now, where you get modified versions of popular software that spam your USB stick with excessive writes. but who cares omg it's portable apps!!! (dot cawm!!1!!)
How about Warner, and others, being required to put up a $1,000 per take-down notice bond. If the take-down is upheld, they get it back. Otherwise, they forfeit it. They can then let their wallet's determine how much due diligence they want to do before issuing.
Warner Brothers failed to even attempt due diligence in properly distinguishing real violators from innocent bystanders. Using a blanket keyword search for collecting a site list is tantamount to ripping all the pages out of a phone book between "N" and "U", then pursuing them all with the hopes and intent of nailing a single "John smith".
There is no presumption of guilt, by going after everyone east of "Over There"... They have no legal grounds for their action and as a thank you for a draconian misuse of the available laws, should get slapped with a 100 ton class action suit from all the effected parties and be made to pay damages and legal fees. You do that once or twice, and these corporate thugs will think twice before letting the hounds loose on the peasants.
The CEO should be brought up on charges and all the responsible parties should be held criminally liable. Its time we all said, "Hell No." to these abuses against the public and our personal rights and freedoms.
Lastly we should make it clear to the idiots in office, that if they continue to sell our rights to highest bidder, that we'll begin pressing the part of their oath of office regarding the protection of the constitution and begin jailing them for treasonous acts against the American People.
Yesterday Warner Bros. responded to Hotfile’s allegations, admitting that it indeed removed materials for which they don’t hold the copyrights. In addition, the movie studio states that it removed many titles based merely on keywords and without verifying their actual content.
Proof that the law is flawed! The law needs to be updated to require that content owners must either: (1) provide proof of the ownership of the content ... OR: (2) stipulate agreement to be liable for $1000 per file per calendar day, plus damages and legal fees, for all content they take down that they have no ownership of (or equivalent legal delegated rights). Missing or flawed proof constitutes electing option #2.
now we need to go OSS in diesel cars
you say "we found file X, and file X belongs to the copyright holder, and I am authorized to act in their behalf". If you are not authorized to act, then it is perjury.
Actually, no. If you know you are not authorized to act, that it isn't file X ou that file X belongs to the copyright holder, then it is perjury. That's his point, I believe. If you don't really know for sure that you're right, but you strongly suspect you are, then it's fair game. Remember perjury is only committed if you know for certain that you feeding false information as a lie is only a lie if you know it not to be true. So a mistake (or a "mistake") cannot be called perjury.
This is far worse than that. "Warner Brothers used automated software crawlers based on keywords", in this case Warner brothers were attempting to claim copyright on file names not on content. So an egregious criminal act, including fraud, misrepresentation, censorship. The extent of their criminal negligence means they should be prosecuted to the full extent of the law and then subject to a class action law suit for infringing the constitutional rights of all those whom they wrongfully accused.
Chaos - everything, everywhere, everywhen
So it sounds like someone should start issuing takedown notices against some of Warner's videos. "Sorry, misidentified your trailer as one of mine using an automated tool, but don't worry all you have to do is re-upload or submit a counter-notice."
I'd love to do it myself but I'm not a US citizen. I tried to get a site that violated some of my GPL code taken down using the DMCA but it doesn't work if you don't have a US postal address.
const int one = 65536; (Silvermoon, Texture.cs)
SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
But... no intelligent person would state that they aren't feeding false information by these takedown notices and the vast majority of DMCA cases. The corporations and the lawyers who do this know very well they are full of crap. Its largely the lack of a reverse sting against them that they continue to do their bully tactics.
Perhaps I should have used a car based analogy...
Using an automated process to spit out DMCA notices is like driving a car with a blindfold on. It's not illegal until you run someone over :)
Also a temporary take down can have a lasting effect on a business or personal reputation. As well you could always make a claim for pain and suffering too... That's always popular in court cases.
09F911029D74E35BD84156C5635688C0
+2 Troll is Slashdot's way of saying groupthink is confused
But... no intelligent person would state that they aren't feeding false information by these takedown notices
That's the thing. An intelligent person can and will use stupidity as a defense. See the tobacco industry trials for more details.
Suppose I were to find some stuff Warner Brothers put on the net. I then would take the title, make a work of the same sort with the same title (and far inferior), and register its copyright.
Then, could I hypothetically find real, legit, Warner Brothers stuff out there with the same title, and send my own DMCA takedown requests? I would have a copyrighted work, I could swear without fear of perjury that it's my copyright, and by executing the same degree of care I could send takedown notices to sites hosting WB stuff.
Now, I'm not a lawyer, and if you do anything like this without actual legal advice you're an idiot, and this isn't anything like legal advice, and I accept no responsibility for any consequences from anybody actually acting out my counterfactual fantasies, but how would this work?
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
If a DMCA claim is mistakenly filed against you, what's your loss?
-) well, cost of legal representation to counterclaim?
But even more important are the issues for the society as whole, going around and accusing people of wrong doing based on automatically generated "proof" by "experts" (at cashing in, not exactly on the relevant technical subject matter), as it happens with DMCA and similar laws, does have a chilling effect on free speech, art (fair use), ...
So yes, an analogy would be: "We've looked at the last 100 copyright infringers, calculated a profile using really modern scientific (cough) methods how infringers are looking, and now we programmed the self-driving Google cars so they check for persons that infringe, to stun them and call the police on location. Sorry for the dead one, we couldn't have known that he had a pacer, and the half-dozen guys we stunned and that spent a weekend in jail that did even own a computer or internet access, sorry, no harm done". Guess a weekend in the slammer for some peons is of no relevancy for the corporate overlords.
So while a fake DMCA take down notice (or a copyright suit because the IP addresses got matched up wrongly) is clearly no harm. It's the duty of every citizen to pay for his legal representation, which cost him more than he makes, while the corporate entity gets a rebate for bringing business and pays the legal expenses as deductible business expenses, actually a tiny part of their revenue?
So the studio owns the words? E.g. "Batman begins Parody", "Review of Batman Begins"? Or even worse for a crawler: "This page contains reviews of the following:" and 90% down the page "Batman begins" linked to a video review of the movie?
The DMCA seems to have an interesting wart, perhaps intended but still: Party A sends take down notice for content of Party B. Now Party B must claim that it has copyright or license to display the content. There are reasonable situations where might lack license or copyright (e.g. copyright owner gone missing), but under DMCA you are not capable to answer to a 3rd party that should have no standing what so ever. Furthermore it puts the burden of proof on the defendant, which is problematic in all the edge cases (e.g. fair use or not).
They didn't pay the 3rd party to find references to the content. And yes, the studios do own the words, for many things, under trademark. They paid a 3rd party to find their content. The 3rd party did a poor job. The studio didn't "know" that. That's one reason why so much outsourcing is done, legal shielding. I've been setting it up with that as a subtext, but nobody noticed. In today's age, corporations face almost zero liability for anything they do (unless against another corporation), even if explicitly in violation of the law. Why would you think DMCA takedowns would be any different?
Learn to love Alaska
Look, it's simple- If you don't know something is true, swearing it is true is a lie.
Nope. You can swear to the best of your knowledge that it is true, be wrong, and not be lying.
Learn to love Alaska